As a general rule advice passing between lawyer and client is “privileged” i.e. the client is not bound to disclose it in legal proceedings.
An exception to that rule is “iniquity” e.g. when the advice is being used for fraudulent activity.
In X v Y Ltd the EAT has looked at the iniquity exemption in the context of “how to discriminate” advice.
X was a long-serving solicitor with a history of Diabetes and Sleep Apnoea. Y Ltd, the legal firm he worked for, was looking to manage his performance and a grievance brought by him under the Equality Act.
In 2016 Y Ltd declared redundancies and X was selected for redundancy.
X came into possession of a classic “smoking gun” – he was anonymously sent a copy email setting out advice to Y Ltd about how the redundancy exercise might provide a useful “cover” for getting rid of X (and his disability issues, of course…)
Secondly, X overheard a pub conversation between lawyers suggesting that he was indeed being set up to fail – a conversation that, he argued, put the email into context.
X brought discrimination proceedings in the ET.
Y Ltd claimed that the advice email was privileged i.e. that it could not be used in the ET case.
The EAT held that this attempt to use the redundancy exercise to “cloak” the discrimination breached the iniquity principle – so privilege was lost, and the ET in the final hearing would be able to look at the advice email.
The wording used in the email does not seem to have been altogether explicit e.g. “there is at least a wider reorganisation and process at play that we could put this into the context of” – but the Judge was prepared to say that there was a lot to be inferred from what was said, and how it was said. References to “the individual” didn’t help Y Ltd, when there was meant to be a wider exercise with various roles at risk of dismissal.
The ET will still have to decide what the real purpose of the email was.
But we rather suspect the case will now not get to a final hearing. The sound of settlement seems not too far off!
A very useful case for Claimants, and a reminder that the ETs are aware that discrimination cases are hard to prove – and will bring to bear some of the more unusual legal armaments, to assist a Claimant to overcome those difficulties.
Also, a reminder that no email is ever necessarily safe…